Seattle University Webinar on the Presidential Immunity Decision

I was one of the participants, along with many other legal scholars.

(Joe Ravi/Wikimedia/CC-BY-SA 3.0)

A few days ago, the Seattle University School of Law held a webinar on Trump v. United States, the recent Supreme Court decision on presidential immunity. The video is now available, and I have included it in this post. I was one of the participants, along with many other legal scholars and commentators. The first panel included Professor Holly Brewer of the University of Maryland Department of History; Smita Ghosh, appellate counsel at the Constitutional Accountability Center; Professor Darren Hutchinson of Emory University School of Law; Professor Lee Kovarsky of the University of Texas, Austin School of Law; Professor Justin Levitt of Los Angeles' Loyola Law School; and Professor Claire Wofford of the College of Charleston. The Speakers on the second panel were Professor Jeremiah Chin of Seattle U Law and the University of Washington School of Law; Professor Rachel Lopez of Temple University Beasley School of Law; Professor Jed Shugerman of Boston University School of Law; Professor Robert Tsai of Boston University Law; Professor Steve Vladeck of the Georgetown University Law Center;Andrew Wright of K&L Gates; and myself. My contribution happened to be the very last one on the second panel. It begins at about 2:37:20.

I analyzed and critiqued the Court's ruling in greater detail here.

 

Comments

[Jacob Grimes]

Too much inside baseball, too little analysis of the opinion on its own terms.

Barely made it through Holly's histrionics. Couldn't watch after that idiot said Roberts went from "half MAGA" to "full MAGA" this term.

[mike petrik]

Yep. Analyzing judicial opinions through a political lens is not scholarship. It is just dull contemporary journalism.

[JasonT20]

Yep. Analyzing judicial opinions through a political lens is not scholarship. It is just dull contemporary journalism.

I suppose that is fair. Of course, what would be even better are judicial opinions that aren't written by judges looking through a political lens.

[JesusHadBlondeHairBlueEyes]

The only way to avoid that is to ban any Democrat from sitting on the bench.

[Armchair]

It was really the only sane decision the court could make.

Every president has made actions that could be considered criminal by the right sort of prosecutor. Every single one (possible exception of Harrison). From assassinating US Citizens, to mass imprisonments, to starting conflicts without explicit Congressional approval and more.

Only reason they haven't been prosecuted is "prosecutorial deference". The prosecutors decided it would be a "bad idea" to prosecute ex-presidents for their technically criminal conduct that occurred during the course of their administration and in their official capacity. It was a political decision for Congress. That precedent just got blasted out of the water.

So, what are you left with? Either
Choice A. You give some degree of immunity for official acts (like judges and prosecutors get, in terms of civil immunity).
Choice B. You open up the door for whenever the party changes for President, the new party prosecutes and imprisons the members of the old party.

Choice B leads to a situation where the party in power "can't" leave, or else they'll all be imprisoned. So, increasingly extreme measures are taken to stay in power.

Choice A is the only rational choice.

[David Nieporent]

Every president has made actions that could be considered criminal by the right sort of prosecutor.

1) Prosecutors don't decide what's criminal. Grand juries, courts, and petit juries do.
2) A decision about whether to prosecute a president is only going to be made at the highest level, not by a random prosecutor.
3) So?

So, what are you left with? Either
Choice A. You give some degree of immunity for official acts (like judges and prosecutors get, in terms of civil immunity).
Choice B. You open up the door for whenever the party changes for President, the new party prosecutes and imprisons the members of the old party.

Choice B leads to a situation where the party in power “can’t” leave, or else they’ll all be imprisoned.

I reiterate that this makes no sense as an explanation, let alone justification, for this decision. Under this decision, every single member of the party in power can still be imprisoned. Every single one, except of course the president himself.

This decision does nothing to solve that problem. But of course, it didn't happen, so it's really a non-problem. This decision was not needed to prevent it, and doesn't address it.

And, again: there's no reason why it would have happened. There's just no incentive for an administration to prosecute members of the past administration in bad faith. What would the current administration gain from that?

[Roger S]

Ask Joe Biden. He has apparently decided to prosecute his political opponent because Biden cannot win in a fair election. Most of the political pundits today say that Trump will win, unless the Dems can successfully tarnish him as some sort of felon. So yes, there is an incentive for an administration to prosecute members of the past administration in bad faith.

[Armchair]

1) "Prosecutors don’t decide what’s criminal"
Prosecutors choose what charges to bring and against whom. Grand Juries merely approve of the charges or don't. And given how grand juries work, they almost always approve the charges. Prosecutorial discretion is generally the real factor who gets charged with a crime and who doesn't. Regardless of the technicalities.

2) "A decision about whether to prosecute a (ex-)president is only going to be made at the highest level, not by a random prosecutor." Given the actions by the DA's in Georgia and NY, this clearly not true.

"3) Under this decision, every single member of the party in power can still be imprisoned. Every single one, except of course the president himself."

Under "this" decision...sure. Until the next case comes up where they try charging everyone who was carrying out the President's orders. And then they realize, Presidential immunity doesn't mean much if you can curtail anyone and everyone who is just following orders or related to it in any way. Just like Executive Privilege doesn't "just" people the papers the President holds, but also papers that "other" people hold that relate to the President's business.

"But of course, it didn’t happen,"
If you ignore it currently happening, sure. There's a reason this decision was made.

[momo]

Let us all remember that "Seattle University" law school is really University of Puget Sound law school, and a 4th tier school from Tacoma.

Ranked 114 out of 196 law schools. Putting it in the bottom ~40%

[JasonT20]

Well, at least Prof. Chin isn't unfortunate enough to teach at that one in Texas tied for 150th.

[Theendoftheleft]

Indeed. And if he keeps up her partisan pseudo-scholarship he might be rewarded with a T50 position one day by the pseudo-scholars in those faculties.

[Roger S]

Somin comes on at the very end to argue that lots of Presidents have been excused from criminal liability. He would have liked to prosecute and imprison FDR for the wartime relocation of Japanese, and Trump for separately detaining migrant adults and children at the border.

These are bizarre opinions. Anti-American as usual, from this Russian open-borders law professor, calling into a meeting from London.

[Social Justice is neither]

What is hilarious about that is he wants to prosecute Trump for following the law. Yeah, he cannot be taken seriously because he has no connection to the world as it is.

[David Nieporent]

FDR for the wartime relocation of Japanese

They were American, you racist asshole, not Japanese.

[Roger S]

They were mostly illegal aliens and anchor babies.

[Kleppe]

Ilya Somin is an open-borders extremist. That's all you need to know about him.

[Sarcastr0]

Certainly it's all you want to post about.

[Theendoftheleft]

It's an understatement. You support both the mass entry of terrorists into America and the creation of a large underclass of illegals to undermine traditional American culture and its welfare state.

You're a traitor to the United States and to its constitution.

[Jason Cavanaugh]

Kleppe's brain is capable of only one thought in a given year. That's all you need to know about him.

[Stephen Lathrop]

You know what's really upsetting? Watching American constitutionalism circle the drain because a corrupt Supreme Court decided the worst person ever to hold the Presidency ought to be retrospectively immunized against well-deserved criminal charges.

You know what's kind of disturbing? Watching a law professor who looks giddily happy to talk about it. Somin's affect is so off-kilter it is hard to take seriously anything he says. He looked as if he didn't think anything he was talking about was real. Would it even get Somin's attention if Trump's henchmen targeted him by name as an open-borders advocate in need of elimination?

[Theendoftheleft]

THAT'S when it started to circle the drain?

Do you know any constitutional law scholars in other Western countries? Do you know WHY most don't actually listen to your 'mainstream' con law scholars or your federal courts?

Your SCOTUS's jurisprudence has been (partisan) bullshit for decades. Now that some of it is being undone, there's no said to be a 'crisis' in that Court.

Further, now that you've openly weaponized your courts to go after political opponents, you expect the rest of the civilized world to think it was wrong of your SCOTUS to try to thwart this?

Wake up: you're evil. People across the West despise Trump but nevertheless also think that you, your courts, and your bureaucracy, are evil. You're not good people doing ruthless things. You're not good people who think the ends justify the means and act accordingly. YOU are evil. And you will be treated as such going forward, by everyone on the left and right, in the West and across the Global South. YOU, and your totalitarian imperialist bullshit, are disturbing.

[Drewski]

"Do you know any constitutional law scholars in other Western countries? Do you know WHY most don’t actually listen to your ‘mainstream’ con law scholars or your federal courts?"

I know a few, and you obviously don't. You don't know what you're talking about. Or, more likely, you know perfectly well that you're an over-the-top, dishonest clown.

[David Nieporent]

an over-the-top, dishonest clown.

Putin gets what he pays for.

[Krayt]

You are concerned about constitutionalism, when you support those who have sicced the investigative power of government on a political opponent in initiative after initiative, starting before he even took office.

This is the opposite of constitutionalism. A good chunk of the constitution uses the design principle to try to forbid that. Yay, you try to work around that, and lie you are not doing that.

We should never have had such a ruling. The power brokers above you caused this by lying and pursuing a political opponent over and over and over again.

This is a terrible solution...to a problem you caused. A major, major problem.

[David Nieporent]

A good chunk of the constitution uses the design principle to try to forbid that.

None of the constitution does any such thing, or tries to.

[Stephen Lathrop]

Don't discourage him. I wanted to hear an explanation of, "the design principle."

[Mycroft]

Recent case where several courts and Government officials deemed President Trump ineligible to run for office. This also includes the Colorado Supreme Court.

Where they right?

The US Supreme Court ruled in a 9-0 decision that the other decisions were so wrong, that they didn't even have to wait for the full set of appeals to wind their way through. Was each and every Supreme Court Justice corrupt?

Not even one liberal sided against President Trump then. Not a single one.

Consider this, you know which Justices are corrupt, or maybe you're just wrong. Which is it?

[Stephen Lathrop]

Mycroft — You have ignored another more-likely alternative. Three justices challenged to dissent at great length, or not comment at all, decided to keep their powder dry, and not comment. I do not think they should have done that, but it happens a lot in losing causes, and I do not consider it corrupt. Nor do I think if that is what happened, it would justify a presumption that the decision announced was unanimously agreed upon on constitutional merits.

[Krayt]

Did you read some of their questions? Should a single state decide for the nation as a whole? Holy god, man. You are trying to defend that cheapskate move as something principled!

[David Nieporent]

Should a single state decide for the nation as a whole?

If we're talking about Trump v. Anderson, a single state was deciding something for that single state, not for the nation as a whole.

[Swede425]

How convenient. You magically turn a unanimous SC agreement into a "yeah, but not really". They jumped on that with both feet, not even waiting for it to go through the full process? Is that what Mycroft is saying? And you're able to divine that really the 3 libs didn't actually agree, they were just being good sports?
Whatever gets you through the night, I guess.

[Stephen Lathrop]

Is it your suggestion that an opinion agreed upon using utilitarian and consequentialist arguments—after excepting full consideration—is supportable as a unanimous opinion based on the historical and constitutional merits pertaining to the case? How would that logic even work?

[Krayt]

What’s left of Beryl is over the northern midwest states this morning, crying and huffing 10 miles per hour winds, a shadow of its former self-righteous fury.

All things pass, including threats to the nation, and insideous attacks on democracy by those screaming they are defending it.

One thing's certain. There will always be such threats, be they hurricanes, or those using the power of government to hurt political opponents. The People, through government, has FEMA and NOAA for the former, and the Constitution itself for the latter, designed for that long-recognized problem 250 years ago.

[Stephen Lathrop]

Kevin Roberts, president of the right-wing Heritage Foundation:

“We are in the process of the second American Revolution, which will remain bloodless ― if the left allows it to be,” said Roberts a few days ago.